Gail Blanchard-SaigerVice President & Counsel, Labor & Employment

July 15, 2011

Gail Blanchard-Saiger provides leadership for state legislative and regulatory issues related to hospital human resources (HR) and labor relations. She has more than 20 years of experience as a labor and employment law attorney representing hospitals and health systems. She is a member of the American Society for Healthcare Human Resources Administration and serves on its Advocacy Committee. She is a frequent speaker and author on health care workplace law issues.

Gail served as special counsel/senior counsel at Foley and Lardner, LLP, as well as in-house labor & employment law counsel for a transportation company. Prior to attending law school, she worked as an HR manager at a nonprofit senior service agency.

Gail received a bachelor’s degree from Boston University and her law degree from the University of California, King Hall School of Law, where she was a Law Review editor and graduated Order of the Coif. After law school, she clerked for the Honorable Garland E. Burrell, Jr., U.S. District Court Judge, Eastern District of California. Gail is a member of the California State Bar.

A new report from the American Hospital Association finds that hospitals and health systems spent an estimated $2.7 billion addressing community violence in 2016 and highlights significant work hospitals are undertaking to mitigate violence in the workplace and the community.

U.S. Citizenship and Immigration Services has revised its Form I-9 for the second time in less than a year,and will require employers to use only the most recent version, dated July 17, 2017, by Sept. 18. Revisions to the form include:

A timing change to require employees to complete Section 1 of the form by the first day of employment (i.e., at the time of hire)

A change to the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section

Revisions related to the list of acceptable documents on Form I-9

Added the Consular Report of Birth Abroad (Form FS-240) to List C

Combined all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350 and Form FS-240) into selection C #2 in List C

Renumbered all List C documents except the Social Security card. For example, the employment authorization document issued by the Department of Homeland Security on List C changed from List C #8 to List C #7.

Until Sept. 18, employers may continue to use the previous Form I-9, with a revision date of Nov. 14, 2016, or use the new form. Employers must continue following existing storage and retention rules for any previously completed Form I-9.

California Labor Code Section 230.1 prohibits discrimination against employees who take time off from work to deal with issues related to domestic violence, sexual assault or stalking. The law also requires employers to provide notice of these rights to new employees upon hire and to existing employees upon request. While the law went into effect on Jan. 1, 2017, the notice requirement was delayed until the Labor Commissioner developed a model notice. Earlier this week, the Labor Commissioner posted a model notice in English and Spanish. Employers are not required to use the model, but if they choose to develop their own it must be “substantially similar in content and clarity.”

Last month, the Los Angeles Superior Court ruled in favor of Long Beach Memorial Medical Center in a wage and hour class action lawsuit. In Castillo v. Long Beach Memorial Medical Center, the plaintiffs alleged that the hospital’s pay practices for nurses working 12-hour shifts was unlawful, relying in large part on the 2005 Huntington Memorial Hospital v. Superior Court decision. The trial court, however, rejected the plaintiffs’ arguments.

In Castillo, the plaintiff nurses were represented by a labor union. In their collective bargaining agreement, the hospital and union agreed that nurses who work 12-hour shifts would receive a lower hourly rate than nurses who work eight-hour shifts, but would receive overtime for the last four hours of their shift. In addition, when a 12-hour shift nurse worked eight hours or fewer due to low patient census, the hospital would pay the higher hourly rate associated with eight-hour shifts.

The California Fair Employment and Housing Commission’s (FEHC) regulations regarding transgender identity and expression were recently approved by the Office of Administrative Law and will go into effect on July 1.

Earlier this month, the California Supreme Court issued its opinion in Mendoza v. Nordstrom clarifying California’s day of rest rules, which are set forth in Labor Code sections 551, 552 and 556. As previously reported in CHA News, the case was presented to the Supreme Court through a request by the Ninth Circuit. In short, the court interpreted the day of rest rules as follows:

One day of rest is guaranteed for each workweek. Periods of more than six consecutive days of work that stretch across more than one workweek are not, per se, prohibited.

The exemption for employees working shifts of six hours or less applies only to those who never exceed six hours of work on any day of the workweek. If on any one day an employee works more than six hours, a day of rest must be provided during that workweek, subject to other exceptions that might apply.

An employer causes its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled. An employer is not, however, forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, to independently choose not to take a day of rest.

This issue has significant implications for California hospitals, as many employees — such as those in pharmacy or laboratory departments who utilize a seven days on/seven days off schedule — work seven consecutive days. Further, with self-scheduling and extra shift compensation incentives, many employees voluntarily schedule themselves for seven consecutive days.

The Department of Fair Employment and Housing (DFEH) has released a guide for California employers, explaining their obligation to take reasonable steps to prevent and correct workplace harassment. Developed in conjunction with the California Sexual Harassment Task Force, the guide is aimed at helping employers to develop an effective anti-harassment program, understand how to investigate reports of harassment and learn what remedial measures they might pursue. The guide addresses all forms of workplace harassment, including harassment based on sex.

In addition, DFEH issued a revised brochure detailing California’s legal protections against sexual harassment and the steps all California employers must take to prevent and correct harassment, as well as a printable poster with the same information. According to DFEH, either the poster or the brochure fulfill an employer’s responsibility to provide employees an information sheet regarding sexual harassment under California law.

The Office of Administrative Law (OAL) has approved new regulations, adopted by the California Fair Employment and Housing Council (FEHC), concerning employers’ use of criminal background information when making employment decisions. The regulations, which take effect July 1, require employers to demonstrate that any criminal history information sought is job-related and consistent with a business need. To meet this obligation, employers may either 1) conduct an individual assessment of circumstances and qualifications of applicants excluded by the conviction screen and determine whether an exception is warranted, or 2) demonstrate that its conviction disqualification policy, though not based on individual assessment, nonetheless properly distinguishes between those who do and do not pose an acceptable level of risk.

Any policy that is not based on individual assessment and is seven or more years old will be presumed not to meet the standards of the new regulations; employers must rebut this presumption proactively. Additionally, prior to taking any adverse action, employers who obtain criminal information from a source other than the applicant must notify the individual and provide him or her an opportunity to challenge the information’s accuracy.

Earlier this week, the California Court of Appeal agreed to publish its recent decision in Gerard v. Orange Coast Memorial Medical Center, which reversed an earlier decision and determined that health care meal period waiver provisions are valid. The change in decision largely rested upon the passage of SB 327 (Chapter 506, Statutes of 2015), which conclusively confirmed that the special health care meal period waiver regulation was valid. CHA requested publication of the decision in official legal reports to ensure that other health care employers can rely on the decision as needed.

Last week, CHA submitted the attached letter requesting that the California Court of Appeal publish its recent decision in Gerard v. Orange Coast Memorial Medical Center, which reversed an earlier decision and determined that health care meal period waiver provisions are valid. The change in decision largely rested upon the passage of SB 327 (Chapter 506, Statutes of 2015), which conclusively confirmed that the special health care meal period waiver regulation was valid. CHA’s request that the decision be published in official legal reports would allow other health care employers to rely on it as needed.

Yesterday, AB 1732 (Chapter 818, Statutes of 2016) went into effect, requiring that all single-user toilet facilities in any business, place of public accommodation or state or local government agency be 1) identified as “all-gender” toilet facilities by signage that complies with Title 24 of the California Building Standards Code and 2) designated for use by no more than one occupant at a time or for family or assisted use. Details on signage requirements were previously reported in CHA News.

On Jan. 27, President Trump issued an executive order titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The order could impact hospital and health system employees, their family members or applicants for employment. Employers should monitor this dynamic situation and determine whether and how to communicate to employees and applicants who may be impacted.

CHA has filed an amicus letter in support of the employer’s request for re-hearing in a recent adverse rest period case. In Augustus v. ABM Security Services, the California Supreme Court issued a ruling that casts doubt on long-standing and consistent guidance from the California Division of Labor Standards Enforcement on meal and rest periods. In that case, the court determined that employees required to carry pagers or other electronic devices on their rest periods were not provided an off-duty rest period as required by law and, therefore, were owed the rest period premium payment under Labor Code Section 226.7. The breadth of the decision has adverse implications for meal period compliance as well.

The Equal Employment Opportunity Commission (EEOC) has released guidance detailing employers’ legal obligation to accommodate employees with mental health conditions such as depression and post-traumatic stress disorder. Reflecting the EEOC’s stance on mental health protections under the Americans with Disabilities Act (ADA), the guidance seeks to inform employees and employers of these protections — including employers’ responsibility to protect employees with mental health conditions from discrimination and harassment, to make reasonable accommodation in the workplace and to protect employees’ privacy and confidentiality. Additionally, the guidance clarifies that an employee’s limitations due to a mental health condition need not be permanent or severe to be covered under the ADA.

As reported previously in CHA News, the U.S. Department of Labor (DOL) appealed the preliminary injunction blocking implementation of the overtime rule that was slated to take effect on Dec. 1. Last week, the Fifth Circuit granted the DOL’s motion to expedite briefing in the appeal. However, full briefing will not be complete until January 31, 2017, and an oral argument date has not been set — although the court stated it would schedule that for the first available sitting after the close of briefing. This timing would allow the DOL, under the Trump Administration, to discontinue the appeal if it chooses.

Hospitals should continue to closely monitor developments in this case and should ensure compliance with the California salary basis test, which will increase to $43,680 on Jan. 1, 2017.

The Internal Revenue Service (IRS) recently announced that it is extending the due date for certain 2016 Affordable Care Act (ACA) reporting forms to be provided to employees. The deadline for employers to provide Form 1095-B (Health Coverage) or Form 1095-C (Employer-Provided Health Insurance Offer and Coverage) to employees is now March 2, 2017 (extended from Jan. 31, 2017). However, the deadline for employers to file the 2016 Form 1095 and Form 1094 (transmittal forms) was not extended. Employers must file the 2016 Form 1094-B, Form 1095-B, Form 1094-C or Form 1095-C by Feb. 28, 2017, if filing by mail, or by March 31, 2017, if filing electronically. In addition, the IRS notice extends “good faith transition relief” for one year, meaning that the IRS will not penalize employers for incorrect or incomplete forms if they can show that they have made “good-faith efforts” to comply with the information-reporting requirements — both for furnishing the reports to individuals and filing with the IRS. According to the IRS, the relief applies to missing and inaccurate taxpayer identification numbers and dates of birth, as well as other information required on the return or statement.

On Nov. 22, the U.S. District Court of Texas issued an injunction blocking the Department of Labor (DOL) from enforcing its new overtime rule, scheduled to go into effect on Dec. 1. The new rule would have increased the salary test for exempt employees to $47,476. Today, DOL issued a statement on its website that it “strongly disagrees with the decision by the court” and is “currently considering all […] legal options.”

Regardless of whether a hospital has implemented the rule’s proposed changes, employers should carefully consider their next steps — which will depend on a hospital’s current stage of compliance. All employers must closely monitor the litigation, weighing the costs and benefits of available options. In any event, hospitals must also consider that the California salary-basis test will increase to $43,680 on Jan. 1, 2017.

Last week, Cal/OSHA released a second revised version of its proposed Cal/OSHA Health Care Workplace Violence Prevention Regulations. The 15-day comment period closes Sept. 12. CHA will work with its existing workplace violence prevention work group to develop comments.

The changes in this version include deletion of “outpatient medical offices and clinics” and “field operations such as mobile clinics and dispensing operations, medical outreach services and other off-site operations.” This is significant news for physician offices. Now, anything that falls outside a hospital’s license and is not performed on the hospital’s campus — e.g., contracted services provided to schools, airports, retail, etc. — is not covered. Other changes, made as a result of CHA’s comments, include:

The window to respond to questions posed during computer-based training was changed from 24 hours to one business day.

The definition of “injury” for purposes of the reporting obligation is defined as per 8 CCR 14300.7(b)(1), meaning that it requires medical treatment beyond first aid.

Cal/OSHA has clarified which injuries must be reported within 24 hours.

The new version deletes the reference to 911 as the threshold for determining whether an event is urgent or emergent; the threshold is now defined as “a realistic possibility of death or serious physical harm.”

As reported previously in CHA News, the Gerard v. Orange Coast Memorial Medical Center meal period waiver class action was pending before the California Supreme Court. The issue raised in the case is the validity of the special meal period waiver rules in Wage Order 5 that are applicable to health care employees, allowing them to waive one of their two meal periods on shifts exceeding 12 hours.

Although the case is fully briefed before the Supreme Court — including various amicus briefs filed by CHA ­— the Court last week transferred the case back to the Court of Appeal with directions to vacate its decision and to reconsider the case in light of SB 327 (Chapter 506, Statutes of 2015). It is unclear whether the Court of Appeal will request supplemental briefing.